Australian Workers' Union, The
[2022] FWC 2560
•23 SEPTEMBER 2022
| [2022] FWC 2560 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Workers' Union, The
(B2022/1428)
| DEPUTY PRESIDENT BINET | PERTH, 23 SEPTEMBER 2022 |
Proposed protected action ballot of employees of Oceaneering Australia Pty Ltd
The Australian Workers’ Union (AWU) have applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cth) (FW Act) in relation to the bargaining for an agreement to replace the Oceaneering Australia Pty Ltd Casual Employee Enterprise Agreement 2011 (Agreement).
The Application was supported by a statutory declaration from Mr Ross Kumeroa, an Offshore Alliance Organiser for the AWU (Mr Kumeroa).
The AWU seek an order for a ballot to be conducted of employees of Oceaneering Australia Pty Ltd (Oceaneering Australia) who are employed by Oceaneering Australia in classifications covered by the Agreement and who are represented by the AWU, or who are bargaining representatives for themselves but are members of the AWU (Employees).
On 21 September Oceaneering Australia indicated that it opposed the Application being granted. The Application was allocated to my Chambers on 23 September 2022.
Directions for the filing of materials in advance of the Hearing were issued to the parties on 23 September 2022 (Directions).
The Application was listed for a conference and hearing on 23 September 2022. The conference and hearing were vacated as the parties reached a consent position in relation to the terms of the Order.
Evidence
The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
Oceaneering Australia filed a witness statement setting out the evidence in chief of its witness Mr Andrew Chalmers (Mr Chalmers). Mr Chalmers is a Project Manager for Oceaneering Australia. Mr Chalmers provided evidence in support of a request by Oceaneering Australia for the notice period for the purposes of section 414(2)(a) of the FW Act to be extended from three working days to seven working days.
The AWU filed a statutory declaration of Mr Michael Michael the managing director of the ballot agent that the AWU propose conduct the ballot setting out his evidence in support of the appointment of CiVS as the ballot agent.
In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
Background
Oceaneering Australia employs approximately 31 employees on two rigs (Ocean Apex and DPS-1) and one vessel (the Maersk Master).[1]
Oceaneering Australia provides subsea support for client drilling operations. This includes the exploration and drilling of new wells, work overs on existing wells and the abandonment of wells that are no longer in operation. Oceaneering Australia are an integral secondary safety barrier for the operations and carry equipment that that is safety critical to the containment and closure of wells should the surface lose control of the primary systems. Oceaneering Australia’s secondary safety critical role is a regulatory requirement and it’s clients cannot carry out their operations without the services of Oceaneering Australia.[2]
Employees engaged under the Agreement are engaged only as casuals and are usually engaged to work 28 days at a time. Typically these employees live in locations around Western Australia, the Eastern States and New Zealand. Oceaneering Australia arrange for the employees to travel by commercial airlines from their home port to the work site.[3]
The Agreement reached its nominal expiry date on 24 January 2016.[4]
A Notice of Employee Representational Rights (NERR) was issued on 26 September 2019. The parties have been in bargaining discussions since that date. [5]
In the course of the negotiations the parties have held bargaining meetings on:[6]
a.21 April 2020;
b.5 July 2020
c.21 July 2021;
d.6 December 2021;
e.16 February 2022;
f.16 March 2022;
g.13 May 2022; and
h.6 September 2022.
The evidence of Mr Kumeroa is that, in addition to the negotiation meetings listed above, there have been other meetings and exchanges of emails to discuss the progress of the negotiations throughout 2021 and 2022.[7]
Mr Kumeroa reports that there are a number of key terms and conditions that are not currently agreed between the parties. These outstanding key terms and conditions include: [8]
a. Rates of pay;
b. Annual wage increases; and
c. Proposed loyalty scheme.
Mr Kumeroa says that the AWU is genuinely trying to reach agreement with Oceaneering Australia and intends to continue meeting in an effort to resolve all outstanding clauses. [9]
The evidence of Mr Chalmers is that if the Employees were to undertake the proposed forms of protected industrial action identified in the Application Oceaneering Australia would need to initiate a range of operational measures to ensure the ongoing safety of personnel at given the remote location its rigs and vessel. This is likely to include a need to mobilise extra personnel to the work sites.[10]
According to Mr Chalmers Oceaneering would need at a minimum seven working days source replacements, confirm their qualifications and suitability, arrange travel and accommodation and ensure that the individuals meet all the current COVID protocols set by the clients. Mr Chalmers gives as an example a client which requires individuals to provide photographic proof of negative RAT tests three days prior to travelling.[11]
Mr Chalmers also says that Oceaneering’s clients would also need a minimum of seven days to safely cease operations and reschedule operations requiring ROV support.[12]
Consideration
The FWC is obliged to issue a protected ballot order in the following circumstances:
“443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”
Section 437 relevantly provides as follows:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi‑enterprise agreement.
(2A)Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).
(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
It is not in dispute that the AWU has standing to make the Application in their capacity as a bargaining representative.[13]
The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement.[14]
The notification time in relation to the Proposed Agreement is 26 September 2019.[15]
The Application specifies at Question 2.1 the group of employees who are to be balloted.[16]
The Application specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.[17]
The AWU have proposed that Democratic Outcomes Pty Ltd be appointed the protected action ballot agent (Agent).[18] The AWU have filed evidence that the Agent is a fit and proper person to conduct the ballot and has met the requirements prescribed in the Fair Work Regulations 2009 (Cth) (Regulations).
The Application was accompanied by documents and other information prescribed by the Fair Work Regulations 2009 (Cth).
I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act.
The AWU have sought that the date by which the ballot should close be three (3) days from the date of the granting of any Order.[19]
The FWC may only make the order sought if the FWC is satisfied that the AWU has been, and is, genuinely trying to reach an agreement with Oceaneering Australia. AWU bears the onus of establishing this.[20]
The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is” imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.
In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union [21] (Esso Case), the Full Bench stated:
“Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad” [22] (references omitted)
In Total Marine Services Pty Ltd v Maritime Union of Australia,[23] a Full Bench of Fair Work Australia relevantly stated:
“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement...”
Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.
The AWU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date.
It is not in dispute and I am satisfied that the AWU have been, and is, genuinely trying to reach an agreement with Oceaneering Australia.
Pursuant to section 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) requires three working days’ notice, or any longer period specified in the protected action ballot order.
Oceaneering Australia submitted that, if an order is to be made, the FWC should exercise its discretion to increase the subsection 414(2)(a) notice period of three working days to up to seven working days.
Section 443(5) of the FW Act provides that:
“If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.”
This requires consideration of:[24]
a.whether the circumstances are ‘exceptional’;
b.whether the ‘exceptional circumstances’ justify a requirement of notice longer than the statutory default; and
c.what the period of notice should be, up to a maximum of seven days.
The right to otherwise give three working days’ written notice of industrial action “should not lightly be curtailed” by the imposition of a longer period of notice.[25]
The determination of whether the circumstances of a particular case are ‘exceptional’ involves an evaluative judgement of those circumstances. Circumstances may be “exceptional” if they are out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, rare or unexpected. For this purpose, “circumstances” may include a combination of factors which together produce a situation that is out of the ordinary course, unusual, special or uncommon, notwithstanding that none of them taken in isolation would be “exceptional”.[26]
When considering whether to extend the notice longer that that statutory default the FWC is not simply concerned with determining whether there are exception circumstances. The exceptional circumstances must ‘justify’ the granting of a longer notice period.[27]
Determining whether the “exceptional circumstances” justify a requirement of notice longer than the statutory default inevitably requires balancing the interests of the employer and third parties in having a greater opportunity to take defensive action, against those of the employees which may be adversely affected by a diminution in the effect of their industrial action, and hence their bargaining power.[28]
Having concluded that particular circumstances are exceptional, and that they justify a requirement of a notice period longer than the statutory default, a Member must decide whether to exercise their discretion to grant an additional period of notice and determine how long that period should be.[29]
An extension of the notice period under sub section 443(5) while not a regular exercise of the FWC’s discretion is not uncommon, including an extension to seven working days.[30]
Oceaneering Australia provided evidence in support of its assertion that exceptional circumstances currently exist, which justify a requirement for a longer notice period. The extension is not opposed by the AWU.
I am satisfied that the nature, and the potential impact, of the proposed industrial action is such that exceptional circumstances do exist justifying the extension of the notice period. In light of the evidence before me, I have decided to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to seven working days is appropriate in all the circumstances.
Having been satisfied that the requirements of section 443(1)(a) and (b) of the FW Act have been complied with, the Application is granted, and a protected action ballot order will be issued with this decision.[31]
DEPUTY PRESIDENT
[1] Witness Statement of Mr Andrew Moffat Chalmers dated 21 September 2022.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Form F34B – Declaration in support of an application for protected action ballot order dated 20 September 2022 (Kumeroa Declaration).
[7] Form F34B – Declaration in support of an application for protected action ballot order dated 20 September 2022 (Kumeroa Declaration) at Q2.1
[8] Ibid.
[9] Ibid.
[10] Witness Statement of Mr Andrew Moffat Chalmers dated 21 September 2022.
[11] Ibid.
[12] Ibid.
[13] Outline of Submissions filed by Oceaneering Australia Pty Ltd filed on 21 September 2022.
[14] Form F34B – Declaration in support of an application for protected action ballot order dated 20 September 2022 (Kumeroa Declaration) at Q1.3.
[15] Ibid Q1.6.
[16] Form F34 – Application for a protected action ballot order dated 20 September 2022 (F34) at Q2.1.
[17] Ibid Q2.2.
[18] Ibid Q3.
[19] Ibid Q2.3.
[20] John Holland v AMWU[2010] FWAFB 526, [27].
[21] [2015] FWCFB 210.
[22] Ibid [57].
[23] [2009] FWAFB 368.
[24] National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011, [23] - [25].
[25] Ibid as cited in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Turosi Pty Ltd t/a Golden Farms Geelong t/a Golden Farms Geelong[2021] FWC 4959 at [18]
[26] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848, [10]; accepted as a correct statement of the law in Construction, Forestry, Maritime, Mining and Energy Union v DP World Sydney Ltd [2019] FCAFC 99, [7] - [8].
[27] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848, [11].
[28] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Australian Postal Corporation (2007) 167 IR 4; [2007] AIRC 848, [21].
[29] National Tertiary Education Industry Union v Charles Darwin University[2018] FWCFB 4011, [25].
[30] Application by Australian Rail, Tram and Bus Industry Union [2021] FWC 4391 at [211].
[31] PR746150.
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